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USCA1 Opinion

UNITED STATES COURT OF APPEAL FOR THE FIRST CIRCUIT

_________________________

No. 93-1127

JOSEPH DOW, ET AL.,

Plaintiffs, Appellants,

v.

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, ET

Defendants, Appellees.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge] ___________________

_________________________

Before

Torruella, Selya and Boudin, Circuit Judges. ______________

_________________________

Paul Alan Levy, with whom Mark D. Stern and Public Cit ______________ _____________ _________ Litigation Group were on brief, for appellants. ________________ Christopher N. Souris, with whom Feinberg, Charnas

_______________________ _________________ Schwartz was on brief, for appellees.

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________

_________________________

July 28, 1993

_________________________

SELYA, Circuit Judge. This appeal pivots onSELYA, Circuit Judge.

______________

meaning and applicability of two documents concerning

internal governance of a labor union, Local No. 218 (

Local"): the constitution of its umbrella union, the Un

Brotherhood of Carpenters and Joiners ("the International

"UBCJA") and the by-laws of Local 218 itself. Much to the di

of two dissident members of the Local, the district c

deferred to the International's construction of the texts

entered judgment accordingly. We affirm.

I I _

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Background Background __________

Local No. 218 is affiliated with, and subject to

direction of, the International. The latter's constitution

the Local's by-laws both speak to the manner in which mid-

vacancies in leadership positions on the local level are t

filled. The constitution states that:

[w]hen vacancies occur in any elective office or in the position of Business Representative, the President may appoint a

qualified member to fill the vacancy pro-tem, until such time as appropriate notices are sent to the membership for the holding of an election to fill the vacancy.

UBCJA Const., 32(B). Yet, with regard to the position

Business Manager/Financial Secretary ("Manager"), the Local's

laws provide that, if a vacancy occurs:

the Business Representative shall assume the duties of the Business Manager/Financial Secretary and shall appoint a Business Representative.

By-Laws of Local No. 218, art. II, 1(A).

2

In 1992, the latent tension between these

provisions surfaced. The incumbent Manager resigned.

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Local's President, Joseph Dow, appointed himself to fill

vacancy on a temporary basis and called for an election purs

to section 32(B) of UBCJA's constitution. Dow viewed

provisions we have quoted as conflicting and reasoned that

constitution trumped the by-law provision for auto

succession.

The International resisted Dow's attempt to grab

reins of power.1 Its president, Sigurd Lucassen, directed

to give effect to the by-law provision by allowing the Busi

Representative, Robert Cataldo, to succeed to the Manager's p

Lucassen found no conflict between the two instruments

governance; the by-law provision simply mandates auto

succession to fill a particular vacancy while section 32(B

the constitution specifies a procedure for filling vacancies

no other mechanism has been provided. Because the by

provision operated ex proprio vigore to fill the Mana __ _______ ______

position simultaneously with the incumbent's resignation,

prevented a vacancy from occurring and eliminated any nee

resort to the constitutional provision. It was on

understanding, Lucassen intimated, that the Internati

approved the inclusion of article II, section 1(A) in Local 2

____________________

1Inasmuch as the Manager's position is the brightest

most coveted star in a local union's administrative firma the struggle over succession takes on added significance.

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by-laws.2

Little placated, Dow and a fellow union member, Ro

Renda, sued in federal district court, premising their actio

section 301(a) of the Labor-Management Relations Act, 29 U.S.

185 (1988), and section 101(a)(1) of the Labor-Manage

Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. 412 (19

The plaintiffs named the International, the District Counci

Carpenters, and Local 218 as defendants.3 They sought to co

recognition of Dow's status as Manager pro tem and to precipi ___ ___

an election to fill the balance of the unexpired term. On c

motions for summary judgment, the district court gave control

weight to the International's interpretation of the gover

documents and entered judgment for the defendants. This ap

ensued.

II II __

Analysis Analysis ________

A. A. __

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Summary judgment is appropriate when the re

documents that possess evidentiary force "show that there i

genuine issue as to any material fact." Fed. R. Civ. P. 56

The mechanics of Rule 56 are familiar: once the moving p

avers "an absence of evidence to support the nonmoving par

____________________

2Section 32(B) of the constitution was in effect whenInternational approved the Local's by-laws. Absentapproval, the by-laws could not have taken effect.

3For ease in reference, we discuss the issues as if Do

the International were the sole parties in interest.

4

case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986),_____________ _______

burden of production shifts to the nonmovant. To defea

properly focused motion, the nonmovant must tender "signifi

probative evidence," First Nat'l Bank v. Cities Serv. Co.,_________________ ________________

U.S. 253, 290 (1968), which, when viewed in the light

flattering to the nonmovant, illumines a genuine and mate

factual dispute. See Anderson v. Liberty Lobby, Inc., 477___ ________ ___________________

242, 247-48 (1986); Medina-Munoz v. R.J. Reynolds Tobacco____________ ______________________

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896 F.2d 5, 8 (1st Cir. 1990); Garside v. Osco Drug, Inc.,_______ ________________

F.2d 46, 48 (1st Cir. 1990). While the required proof nee

necessarily rise to the level of admissible trial evidence,

Celotex, 477 U.S. at 324, it must consist of something more_______

"conclusory allegations, improbable inferences, and unsuppo

speculation." Medina-Munoz, 896 F.2d at 8; accord Fragos____________ ______ _____

Lopez, 991 F.2d 878, 886 (1st Cir. 1993); Kelly v. United Sta

_____ _____ _________

924 F.2d 355, 357 (1st Cir. 1991). Brash conjecture, cou

with earnest hope that something concrete will eventu

materialize, is insufficient to block summary judgment.

This appeal implicates a specialized applicatio

Rule 56. It is common ground that a labor union's inte

affairs comprise an enclave best kept free from judi

intrusion. See Local No. 48 v. United Bhd. of Carpente___ _____________ ________________________

Joiners, 920 F.2d 1047, 1051 (1st Cir. 1990); Howard v. Un _______ ______ _

Ass'n of Journeyman & Apprentices, Local # 131, 560 F.2d 17

________________________________________________

(1st Cir. 1977). Thus, the scope of judicial inquiry is narr

circumscribed in such cases. And, moreover, the resul

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circumscription is particularly stringent when, as now, a l

organization's interpretation of its own constitution

singularly at issue. See Local No. 48, 920 F.2d at 1052. ___ ____________

B. B. __

In Local No. 48, a case construing the very u ______________

constitution that is at issue here, this court concluded t

general union's interpretation of its own governance docu

will ordinarily be upheld "unless that interpretation is pate

unreasonable." Id. On that basis, we refused to second- ___

the International when it advanced a "plausible" reading of

constitution. Id. At bottom, then, Local No. 48 stands for___ ____________

proposition that, in the absence of bad faith,4 a l

organization's interpretation of internal union documents put

end to judicial scrutiny so long as the interpretation

"facially sufficient" or grounded in "'arguable authority.'"

(citation omitted); accord Newell v. International Bhd. of E ______ ______ ______________________

Workers, 789 F.2d 1186, 1189 (5th Cir. 1986); Local 334, Un _______ _____________

Ass'n of Journeymen & Apprentices v. United Ass'n of Journey_________________________________ _______________________

Apprentices, 669 F.2d 129, 131 (3d Cir. 1982); Stellin

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___________ _______

International Bhd. of Elec. Workers, Local Union No. 1547,____________________________________________________________

F.2d 1379, 1389 n.10 (9th Cir. 1978), cert. denied, 442 U.S._____ ______

(1979).

This black letter law simplifies our task. We af

plenary review to the entry of summary judgment below.

____________________

4Here, Dow adduced no evidence that the Internati

formulated its interpretation in bad faith. What is more, henot asserted a claim of bad faith on appeal.

6

Garside, 895 F.2d at 48. To do so here, we need only deter _______

whether the International's synthesis of the juxtap

documents, i.e., its view that section 32(B) of the constitu ____

leaves room for, and can comfortably operate side by side wit

by-law provision mandating automatic succession to a partic

post, is "so implausible or patently unreasonable as t

undeserving of deference." Local No. 48, 920 F.2d at 1052. ____________

C.

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C. __

We turn now to the record, first examining the rele

texts. On one hand, the constitution, quoted supra p. 2, st _____

that when "vacancies occur in any elective office," the presi

of the local "may" appoint a replacement to serve until

election is held. On the other hand, the by-laws, see supr___ ___

2, state that "the Business Representative shall assume

duties of the [Manager]" if a "vacancy [in that posit

occurs." While these provisions can assuredly be rea

conflict and if they clash, the constitutional provi

prevails, see UBCJA Const., 6(C), 25(A) a harmonious rea ___

of them is hardly implausible. We think it is significant

the constitution uses precatory rather than mandatory langu

The permissive "may" contained in the constitution, as oppose

the directory "shall" contained in the by-law, signals tha

temporary, presidential appointment and subsequent electio

but one available method for filling vacancies, impli

suggesting that other, equally satisfactory methods can

employed. Accord La Joie v. Bay Counties Dist. Council,______ _______ ____________________________

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L.R.R.M. (BNA) 2547, 2549 (N.D. Cal. 1993) (refusing, for

reason, to find a conflict between the identical constituti

provision and the by-laws of a different local). On

(entirely plausible) reading, automatic succession i

permissible method of selection.5 Hence, there is ample tex

support for the International's conclusion that

constitution's words are inapplicable here because a new Man

has already been designated that is, the vacancy has alr

been filled through an authorized alternative process.

Dow contends that in determining whether

International proffered an interpretation worthy of deferenc

reviewing court must not examine the letter of the text

majestic isolation, but must read them in conjunction

available extrinsic evidence of past union interpretations

practices. We agree that "track record" evidence may ofte

illuminating and should be considered. After all, evidence

a union decision follows established custom might serve

strengthen the decision's inherent reasonableness and, by

token, evidence that a union decision constitutes a radical b

from uniform past practice might undermine its see

plausibility. Cf. Local No. 48, 920 F.2d at 1052 (citin___ _____________

context "of an ongoing consolidation process" as one indiciu

the reasonableness of the union's authorization of a mer

____________________

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5We believe it is noteworthy that the United St Department of Labor's regulations implementing the L expressly authorize "automatic succession" to fill mid- vacancies. 29 C.F.R. 452.25 (1992).

8

Here, however, the summary judgment record is barren of

evidence sufficient to support an inference that

International's present reading of the constitution is n

contrived or inconsistent with past practice.

To be sure, appellant tried to plug this hole.

failed efforts center around three sworn statements signe

John S. Rogers, once a high-ranking officer of the Internatio

Appellant tells us that these affidavits evidence a traditio

requiring elections to fill mid-term vacancies in the fac

conflicting local by-laws. He is wrong. To the extent that

affidavits touch upon matters germane to this appeal, they

much too vague to forestall summary judgment.

Appellant places greatest emphasis on Rogers's repe

statements that it has "always" been UBCJA's practice to con

elections to fill mid-term vacancies. In context, however,

assertion constitutes no more than an empty generality. A pu

conclusory statement of this sort is manifestly insufficien

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support an inference of inconsistent past practice withou

accompanying suggestion nowhere to be found that su

vacancy has ever before occurred in a local that had adopte

automatic succession rule. See Local No. 48, 920 F.2d at

___ _____________

(explaining that unsubstantiated conclusions are inadequat

block summary judgment); Oliver v. Digital Equip. Corp., 846______ ____________________

103, 109 (1st Cir. 1988) (refusing to allow "unsubstanti

allegations" to defeat summary judgment). In the same

Rogers's general statement that "the Brotherhood and its l

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unions" have deemed a resignation to create "a vacancy .

regardless of whether or not the applicable Constitution or

Laws contained a successorship provision" is devoi

significance absent an indication nowhere to be found t

particular incident actually occurred and that Rogers posse

some knowledge about it. See Anderson, 477 U.S. at 24 ___ ________

(stating that, in the summary judgment context, sugge

inferences must be supported by "specific facts"); Medina-Mu ________

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896 F.2d at 9 (terming plaintiff's attempted application

conclusion to a different factual predicate "too large a lea

In light of these gaps, the Rogers affidavits, carefully rea

not contradict UBCJA's sworn averment that, at least within

past five years, the International has never ordered a l

operating under an approved automatic succession procedur

hold an election to fill a vacancy.6 Indeed, since the re

demonstrates that the International has approved a number

local union by-law provisions incorporating automatic succes

regimes, including the provision at issue here, the re

virtually compels the inference that UBCJA's present construc

of the juxtaposed instruments of governance is consistent

its past practice.

____________________

6The shortcomings in the Rogers's affidavits are allmore striking because appellant extracted not one, but t

successive affidavits from Rogers, over a period spanning t and one-half months. The latest of these was executed a

three days before the hearing on summary judgment. Sincethrice went to the well in an effort to secure suppleme

information, we think it fair to assume that everythingcould be said was in fact said.

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In short, appellant's "past practice" pro

represents yet another situation where a court considerin

motion for summary judgment "cannot accept, in lieu of docume

facts, conclusory assertions." Sheinkopf v. Stone, 927_________ _____

1259, 1262 (1st Cir. 1991). Consequently, we hold

appellant failed to raise a genuine question regarding

practice that would bear on the reasonableness of

International's textual construction.

We have said enough.7 While the International's

on the written provisions may not be the only possible one

even the most natural one, it is well within the universe

acceptable interpretations. Because plausibility is all tha

required in a situation of this kind, the lower c

appropriately granted summary judgment on the existing recor

III III ___

Curtailment of Discovery Curtailment of Discovery ________________________

____________________

7We reject out of hand appellant's claim that two o factual disputes sufficient to defeat UBCJA's motion for su judgment lurk in the record. First, pointing to the absence

of September 9, 1992, of documentary proof anent Catal appointment as Business Representative, appellant speculates

Cataldo was not duly appointed and, therefore, could not suc to the Manager's position pursuant to the by-laws.

speculation does not hold water: a nonmovant cannot defeamotion for summary judgment solely by asserting that the mo

has not adduced, or explained its failure to adduce, thepossible proof of a material point. See Celotex, 477 U.S

___ _______ 323; Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 182

____ ___________________________

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Cir. 1989). The second dispute concerns whether Cataldo,violation of the constitution, assumed the Manager's posi

before resigning as Local 218's Recording Secretary. Becausis uncontradicted that Cataldo no longer held the latter posi

by October 7, 1992, at the latest, we, like the district co deem the exact date of his resignation to be immaterial.

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Appellant's fall-back position is that the jud

below must be vacated because the district court unduly curta

discovery prior to deciding the summary judgment motions.

generally Celotex, 477 U.S. at 322 (recognizing the require _________ _______

of "adequate time for discovery"); Fed. R. Civ. P. 5

(authorizing continuances so that a nonmovant, upon a pr

showing, may gather "facts essential to justify [an] opposit

to summary judgment). The argument is cast in disingenuous t

and distorts the nature of the district court's discovery rul

Early in the proceeding, the district court hea

cacophony of sounds on the issue of discovery: on one flank,

International urged a stay of discovery; on the opposite fl

Dow sought to expedite discovery and widen its scope. Confro

with cross motions for summary judgment that might be suscept

to resolution on the submitted papers, and anticipating that

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argument on the cross motions would take place on January

1993, the district court, in a ruling from the bench, ha

discovery on December 18, 1992. The court, however, droppe

anchor to windward: since the full panoply of papers regar

the motions had not yet been filed, the judge invited Do

request a continuance for the purpose of conducting discover

the hearing on summary judgment if, by then, Dow still beli

that he could not adequately argue the cross motions without

discovery.8 Hence, notwithstanding appellant's cur

____________________

8Various exchanges at the December 18 hearing tell the t We offer a few representative vignettes. The judge ad appellant's counsel that if the UBCJA "file[s] something o

12

caterwauling about a categorical ban on discovery, the cou

ore tenus order was plainly an interim measure, li ___ _____

extinguishable for the asking.

Although Dow held the key to discovery, he neglecte

unlock the door. The January 12 hearing came and went wit

any semblance of a renewed request to conduct discovery. No

did appellant ask, even as a form of alternative relief, t

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decision on summary judgment be postponed until further disco

could be obtained. Rather, he chose to shelve the quest

discovery and dive head-first into the summary jud

maelstrom.9

The rule in this circuit is clear that, when a c

____________________

factual nature, and you need something to rebut, then Imove [on January 12] for discovery." The judge later reiter

the point, stating that once the paperwork is complete,[appellant's attorney] can see whether you need any disco

If, for some reason, on the 12th you come in here and sa

can't argue the motion because there is a particular documena factual allegation that has been made and I need to look atparticular thing, maybe I would do it."

9Appellant's suggestion that he revived his disco request at the January 12 hearing is, at best, wishful thin His counsel's oral argument contained only a fleeting refer to appellant's past inability to conduct discovery as he

have preferred. His suggestion that he renewed the requestsupplemental memorandum filed in connection with the hearinequally jejune. The memorandum, directed primarily towarentirely different matter, contained a solitary sentenceobfuscatory than illuminative, concerning "legitimatenecessary outstanding requests for discovery." These consti

no more than veiled references which, without more, cannotthe place of an affirmative request to conduct further disco

Cf. Paterson-Leitch Co. v. Massachusetts Mun. Wholesale E ___ ___________________ _______________________________ Co., 840 F.2d 985, 989 (1st Cir. 1988) (holding that oral

___ written statements "complaining about [a] stay of discove

coupled with "cryptic allusions," are "entirely inadequate"support a Rule 56(f) motion).

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temporizes or otherwise defers a ruling on a discovery requ

and the proponent thereafter fails to resurrect the issue

timely fashion, he is deemed to have abandoned the point

cannot later complain on appeal concerning a denial of

discovery in question. See DesRosiers v. Moran, 949 F.2d 15,___ __________ _____

23 (1st Cir. 1991). As we have said, "a party who seeks a ru

must persist in his quest to some reasonable extent." Id. at___

Having flouted this rule, Dow finds himself mired

pit similar to that which the government dug for itself in Re _

v. United States, 863 F.2d 149 (1st Cir. 1988). There,______________

government moved for additional discovery at a pre-trial hea

before a magistrate judge. In denying the motion, the magist

told the government that it might mull the matter for a few

and renew the request in a more specific form. A follo

request never came. On appeal, the government attempted to p

an objection to the denial of discovery. We overruled

objection, holding that the government had an obligation

specify, face-up and squarely, what information it continue

seek." Id. at 168. By not resurfacing the point, despite___

express invitation to do so, it "waived the right to protest

denial of" discovery. Id.

___

The same result must obtain here. The district c

voiced a clear invitation to seek discovery anew. Dow esc

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it. He cannot now "legitimately complain of lack of access

[discovery which he] never seasonably requested." Id. at___

This is as it should be; any other outcome would squa

14

judicial resources and give parties who, like Dow, pl

headlong into the merits of a case without pausing to ex

discovery options a second bite at the cherry. In the

analysis, "[c]ourts, like the Deity, are most frequently move

help those who help themselves." Paterson-Leitch Co.___________________

Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 989_______________________________________

Cir. 1988); see also Hebert v. Wicklund, 744 F.2d 218, 222

___ ____ ______ ________

Cir. 1984) (refusing to "employ [Rule 56(f)] to spare liti

from their own lack of diligence").

IV IV __

Conclusion Conclusion __________

We need go no further. By failing to renew his re

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for discovery at the appropriate time, Dow waived any objec

to the district court's decision to resolve the summary jud

motions on the existing record. And, because the Internation

reconciliation of the arguable conflict between its constitu

and the Local's by-laws is plausible in terms of that record,

entry of summary judgment in defendants' favor must stand.

Affirmed. Affirmed. ________

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